Protected disclosures
Staff and Corporate
Services Directorate
PIN – 043
13
The Director of Staff and
Corporate Services
30/10/15
Department of Justice and Equality Protected Disclosures Policy
Protected Disclosures Act 2014
-
30/10/2016
30/10/2015
IPS Policy for Protected disclosures
Table of Contents
1.
Aim of this policy
1
2.
Purpose of this policy
1
3.
Scope of this policy
2
4.
Procedures for implementation
3
5.
Related policies /standards
11
6.
Definitions
11
Appendices
12
Appendix 1: Protected Disclosures Reporting Form
12
Appendix 2: Internal Reporting Workflow
13
Irish Prison Service Policy for Protected disclosures V 30/10/2015
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1. Aim of this policy
1.1
To set out the Irish Prison Services policy on Protected Disclosures in the workplace.
1.2
This Policy is an adaptation of the Department of Justice and Equality (the Department)
Protected Disclosures in the Workplace policy.
1.3
The Protected Disclosures Act 2014 provides a robust statutory framework within which
workers can raise concerns regarding potential wrongdoing that has come to their
attention in their workplace, in the knowledge that they can avail of significant
employment and other protections if they are penalized by their employer or suffer any
detriment for making such disclosures.
1.4
This Policy shall be considered a part of the Irish Prison Service (IPS) and the
Departments approach to good corporate governance ensuring that high standards are
maintained and that a culture of “speaking up” is encouraged.
2. Purpose of this policy
2.1
To encourage all workers to raise internally concerns about possible wrongdoing in the
workplace so that these concerns can be investigated following the principles of natural
justice and addressed in a manner appropriate to the circumstances of the case.
2.2
To ensure that all disclosures of wrongdoing in the workplace will, as a matter of routine
be the subject of an appropriate internal investigation followed by appropriate actions
based on the investigation findings thereby ensuring workers will not have a need to,
or a basis for, seeking to access the remedies of the Protected Disclosures Act 2014.
2.3
The IPS and the Department will ensure that there is a mechanism to enable all workers
to voice concerns in good faith internally in the confidence that in so far as possible:

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
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their communications will be treated with confidentiality by the recipient
their concern will be investigated where that is considered appropriate
the person reporting will receive protection from victimisation or harassment
the person reporting will not be subject to retribution or disciplinary proceedings
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2.4 The policy relates to the reporting of relevant wrongdoings as defined in the
Protected Disclosures Act 2014 and is not intended to act as a substitute for normal
day to day operational reporting. Neither is it intended to act as a substitute for
existing grievance or other HR procedures
3. Scope of this policy
3.1
This policy applies to all staff of the IPS.
3.2
This policy refers to “workers” throughout the document. This term covers all persons
who are employees whether temporary, long term contractors, agency workers or any
other persons in receipt of payment for service to the IPS. Retired employees or exworkers may also report under this policy.
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4. Procedures for implementation
4.1
What is a Protected Disclosure?
4.1.1 A Protected Disclosure is as defined in the Protected Disclosures Act 2014, being
a disclosure of relevant information related to wrongdoing made by a worker in
the manner specified under the act.
4.1.2 A worker must reasonably believe that the information disclosed tends to show
one or more “relevant wrongdoings”
4.1.3 The wrongdoing must come to the workers attention in connection with his or
her employment. For example, a disclosure will not be protected if it relates to
matters in someone’s personal life outside and unconnected to the workplace.
4.1.4 As it is not possible to know at the time of a disclosure whether the disclosure
would subsequently be deemed protected under the 2014 Protected Disclosure
Act, all disclosures will initially be treated as if they meet the criteria under the
Act.
4.2
What type of disclosure is covered by this policy?
4.2.1 A Protected Disclosure involves the reporting of information which, in the
reasonable belief of the worker making the report, is true and tends to show that
one or more of the following relevant wrongdoings has been committed:
a) Unlawful or improper use of public funds or resources;
b) Financial misconduct or fraud;
c) Corruption, bribery or blackmail;
d) Failure to comply with a legal or regulatory obligation;
e) Endangerment of the health and safety of employees and clients;
f) The commission of a criminal offence;
g) Miscarriage of justice;
h) Gross negligence or gross mismanagement by public bodies;
i) The concealment of any of the above;
4.3
What type of disclosure is not covered by this policy?
4.3.1 This policy does not cover matters of private interest, i.e. personal complaints or
personal grievances. Matters of a personal nature should continue to be
reported to the Staff and Corporate Services Directorate under the relevant
Human Resource policy.
4.4
How can I make a disclosure?
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4.4.1 As a first step, a worker, believing reasonably, that a wrongdoing exists in the
workplace, should consider reporting the matter to his/her:
a) Line Manager at Assistant Governor Level/HEO level or above
If the worker would be uncomfortable or otherwise reluctant to report to
his/her manager, then they can report the matter to:
b) The next highest level of management up to and including appropriate
Director/Campus Governor/Director General
However, if for any reason the worker feels it in appropriate to report a
wrongdoing to the persons above, then s/he should report these concerns
to:
c) The Head of Internal Audit
Where a worker has reported to line management and is dissatisfied with
the response/outcome of line management’s investigation then s/he retains
the right to further report the concerns to the Head of Internal Audit.
4.4.2 Workers may alternatively choose to make a report directly to an appropriate
external regulatory authority. However, they should remain cognisant of their
confidentiality duty to the IPS and the Department and should consider whether
by-passing the internal procedures is a reasonable course of action.
4.4.3 Reports or concerns expressed anonymously will be considered at the discretion
of the Head of Internal Audit. In exercising this discretion, the Head of Internal
Audit will take the following into account:
a) The seriousness of the issues raised,
b) The credibility of the concern,
c) The likelihood of confirming the allegation from attributable sources.
4.4.4 Anonymous reports will be taken seriously however the effectiveness of any
investigation may be limited where an individual chooses not to be identified.
The IPS and the Department strongly encourage staff to identify themselves in
making a report to facilitate the investigation.
4.4.5 Workers should not endeavour to find proof of their suspicion, if their concern is
based on a reasonable belief, the worker should report under this policy.
4.4.6 As may be appreciated, written correspondence is preferred to verbal as there is
less scope for misunderstandings arising. Verbal correspondence will be
accepted but it should be noted that verbal correspondence may carry less
weight in considering whether the issue should be forwarded for full
investigation.
4.4.7 The report can be submitted on the template at Appendix 1 and should include
the following at a minimum:
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a)
b)
c)
d)
Date Submitted
Subject
Detail of Concern
Detail of whether the concern was previously raised and to whom
4.4.8 The detail of the disclosure should be in sufficient detail that a person without
prior knowledge would understand the issue.
4.4.9 Reports should be submitted to an appropriate person as outlined in section 8
above. Where it is intended to communicate the concern directly to the Head of
Internal Audit, then the report can be forward to:
The Head of Internal Audit,
51 St Stephens Green,
Dublin 2.
Phone: 016028499.
Email: [email protected]
4.5
The process of an assessment and investigation will be as follows:
4.5.1 The objective of a preliminary investigation is to ascertain whether or not, the
concerns reported have occurred. The IPS will ensure that Investigators will at all
times be cognizant of, and comply with principles of natural justice.
4.5.2 In all instances where a report has been made under this policy, a record will be
made of its receipt and a file opened
a) All written reports submitted by a named worker will be examined
b) Verbal reports will be examined if the appropriate person or the Head of
Internal Audit considers that there is enough information supplied to carry
out an investigation. Anecdotal evidence may not be considered strong
enough to undertake an investigation. Verbal reports will be documented
by the recipient.
c) Anonymous reports will be examined subject to the discretion of the Head
of Internal Audit.
d) In exercising this discretion, the factors that may be taken into account
would include
i. The seriousness of the issues raised
ii. The credibility of the concern
iii. The likelihood of confirming the allegation from attributable sources
4.5.3 In line with the reporting cascade, the issue will be investigated by the line
manager reported to.
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4.5.4 Queries regarding this policy and any guidance required in relation to conducting
an investigation should be sought by Line Managers from the Assistant Principal
in charge of Pensions and Remuneration or from the Head of Internal Audit.
4.5.5 Where the line manager considers he is not capable of dealing with the particular
allegation, he may refer the matter to the Head of Internal Audit who will
organize for the issue to be investigated by either a member of the Internal Audit
team (for simple issues), or by appropriate qualified professionals – either
internal or external personnel.
4.5.6 Where it is proposed to refer the matter to an internal person, other than a
member of the Internal Audit Team, for investigation, the worker reporting the
concern will be notified of the name of the investigating person and may request,
if not comfortable with the named individual investigating the claim, that the
matter be referred to another person.
4.5.7 If not already notified under the previous paragraph, the person who has made
the disclosure will be advised of the name and contact details of the person
(internal or external) who is handling the matter and may be asked to provide
additional assistance is required.
4.5.8 If on preliminary examination, the allegation is judged to be wholly without
substance or merit, the allegation may be dismissed and the person who made
the report will be informed.
4.5.9 If, on preliminary examination, there appears to be prima facie substance to the
allegation, the matter may:
a) Be the subject of a full investigation,
b) Be referred to an outside body including An Garda Siochána,
c) Be referred to the Staff and Corporate Services Directorate for investigation
under the appropriate Human Resource Policy.
4.5.10 Any disclosures forwarded for full investigation will be thoroughly investigated
including interviews with all the witnesses and other parties involved.
Statements from all parties shall be recorded in writing and a copy given to the
interviewee for confirmation
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4.5.11 The IPS will need to take great care in providing information to the person who
has made the disclosure to ensure that it does not breach the legal rights of any
person who has been accused of wrongdoing. Providing information to the
person who has made the disclosure might compromise the investigation of the
case in some circumstances. The worker who has made the disclosure will be
provided with periodic feedback for purposes of reassurance that the
investigation is being progressed. At the conclusion of the process the worker
who has made the disclosure will be informed of the general outcome of the
investigation.
4.5.12 It is important to note that the principles of natural justice do not require a
person associated with an allegation of wrongdoing to be notified of the receipt
of an allegation. Nor does the person accused of the wrongdoing have the right
to know the identity of the worker who has made the report.
4.5.13 Where an investigator wishes to question or seek information from the person
accused of wrongdoing, the subject is entitled to be given details of what is
alleged and given the opportunity to respond and to contest the allegation.
4.5.14 In the interests of natural justice, the person(s) against whom the allegation is
made will be informed in writing of the allegation and all of the supporting
evidence, and will be allowed full opportunity to comment at an appropriate
stage in the process and before the investigation is concluded.
4.5.15 The person accused of wrongdoing is entitled to be informed of the outcome
of the investigation and is entitled to a copy of the investigation report if it
concludes that a wrongdoing has occurred.
4.5.16 All reasonable efforts will be made to keep the identity of the person making
a report confidential. However it is important to be aware that it may not be
possible to keep the identity confidential as in certain circumstances, the person
may be required to co-operate with investigating authorities or, for example,
give evidence in Court or to another forum. However, in accordance with the
objective of section 16 of the Protected Disclosures Act 2014, the identity of the
persons making a disclosure will be protected and it will be a disciplinary offence
for persons to disclose improperly the identity of such a person or to seek to
establish the identity of a person who has made a disclosure.
4.5.17 A worker should not hesitate to contact the Departments Internal Audit Unit
for informal discussion in relation to the process of reporting and of conducting
investigations under this policy.
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4.5.18 If a worker is unsure whether to use the procedure or s/he wants independent
advice at any stage, s/he is encouraged to obtain external independent advice.
Transparency International Ireland provides independent advice to workers.
4.6
All reasonable steps will be taken to protect workers from penalisation for having made
a Protected Disclosure.
4.6.1 Workers should inform the Director General or the Head of Internal Audit if they
have experienced any act of penalisation by any employee of the IPS as a result
of having made a protected disclosure.
4.6.2 The IPS and the Department will not tolerate any penalisation of workers who
make a report under this policy and will treat any acts of penalisation or
attempted penalisation as serious misconduct under the Prison (Disciplinary
Code for Officers) Rules, 1996 or the Civil Service Disciplinary Code 2006, or
where the Code does not apply, as a serious disciplinary matter.
4.7
The following are potential outcomes on conclusion of the investigation of the matter
disclosed;
4.7.1 The disclosure is upheld or partly upheld leading to:
a) The malpractice being stopped and the system weaknesses identified and
addressed or the concern being addressed in so far as is reasonable
b) Disciplinary action being taken under the Prison (Disciplinary Code for
Officers) Rules, 1996 or the Civil Service Disciplinary Code 2006 against the
wrongdoer depending on the results of the investigation
c) The matter being referred to an outside body, including An Garda Síochána.
4.7.2 Where the disclosure is not upheld, no action if the allegation made in good faith,
proves unfounded.
4.7.3 A disclosure made in the absence of a reasonable belief will not attract the
protection of the 2014 Act and this may result in disciplinary action against the
discloser. In addition, disclosure of a wrongdoing does not confer any protection
or immunity on a worker in relation to any involvement they may have had in
that wrongdoing.
4.7.4 If the outcome of the investigation of a disclosure is not to the satisfaction of the
worker that reported the issue, then s/he has the right to make a disclosure to
the appropriate legal or investigative agency outside of the IPS or the
Department in line with the provisions of the Protected Disclosures Act 2014.
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4.8
If the worker who has made the disclosure is not satisfied with the outcome of the
investigation, the IPS or the Department will engage an external reviewer to re-evaluate
the findings and consider any additional evidence provided.
4.9
The responsibilities of all staff are set out in the table below
All workers
To ensure that reports are made where appropriate; and that they are
valid.
Line Managers
To investigate and to follow the appropriate steps once a report is made.
Line management must also send outline details of the Protected
Disclosures to Internal Audit for statutory reporting purposes
The Head of Internal Where an investigation is referred, to investigate, or organise an
Audit
investigation, and to follow the appropriate steps once a report is made.
This is subject to the Head of Internal Audit being satisfied that the
concern merits investigation.
Staff and Corporate To ensure that all workers are informed of the Protected Disclosures
Services Directorate Reporting Policy annually.
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Investigator
(if appointed)
To investigate and to follow the appropriate steps once a report is made
and to report to the Head of Internal Audit as appropriate.
Management Board
To review and assess how the policy is working and to make adjustments
to policy as appropriate.
4.10 Confidential records will be kept of all matters raised through this Protected Disclosures
Policy and the Departments Management Board will receive periodic reports on its
effectiveness.
4.11 The Policy forms part of the internal control procedures and as such will be reviewed
and updated (if necessary) on a regular basis as part of the review of internal controls
and procedures. Any changes will be notified to staff.
4.12 The Head of Internal Audit will prepare and publish an Annual Report, on an anonymised
basis, in relation to the disclosures received and dealt with under this policy in the
previous year in line with the requirements of Section 22 of the Protected Disclosures
Act 2014. This report is to be “in a form that does not enable the identification of the
persons involved”.
Context of the policy
4.13 The purpose of the Protected Disclosure Act 2014 is to provide a robust statutory
framework within which workers can raise concerns regarding potential wrongdoing
that has come to their attention in the workplace in the knowledge that they can avail
of significant employment and other protections if they are penalised by their employer
or suffer any detriment for doing so.
4.14 The Protected Disclosures Act 2014 provides for a stepped system of channels through
which a worker can make a disclosure if s/he wishes to attract the protections under
the act. A worker may communicate his or her concerns to
4.14.1 An employer (Section Error! Reference source not found. and Section Error!
Reference source not found. of this Protected Disclosures Policy)
4.14.2 To a prescribed person as set out in Statutory Instrument 339 of 2014
(Protected Disclosures Act 2014 (Section 7(2) Order 2014). This is a formally
designated person that can receive a report in respect of matters in their
sphere of responsibility e.g. the Director General of the Environmental
Protection Agency can receive reports on all matters relating to the protection
of the environment in the State.
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4.14.3 To a Minister of the Government (regarding a matter within their functional
ambit or in the case of a worker in a Public Body)
4.14.4 Externally to others e.g. reporting to the Comptroller and Auditor General, or
to a public representative etc.
4.15 This is the context in which our Protected Disclosures policy sits. A worker is encouraged
to use the internal confidential reporting structure in the first instance. It is only if the
internal structures fail the worker or the worker does not have confidence in the
internal structures that the worker may feel obliged to report an issue outside of the
organisation. In this case, the worker is afforded some protection under the Protected
Disclosures Act 2014.
4.16 It should be noted that there are certain prerequisites for entitlement to redress under
the act, being:
4.16.1
That the worker has been penalised or is threatened with being penalised at
the hands of the employer for having made a disclosure
4.16.2
That the disclosure is a protected disclosure under the terms of the act (this
will not be known at the time the disclosure is made.
5. Related policies /standards
Department of Justice and Equality Protected Disclosures Policy
Protected Disclosures Act 2014
6. Definitions
IPS – Irish Prison Service
The Department – The Department of Justice and Equality
The Act – The Protected Disclosures Act
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Appendices
Appendix I –
Protected Disclosures Reporting Form
Appendix II –
Internal Reporting Workflow
Appendix 1: Protected Disclosures Reporting Form
The Irish Prison Service and the Department of Justice and Equality welcome the reporting of
disclosures under the Protected Disclosures Policy. The Protected Disclosures Policy is part of the IPS
and the Departments approach to good governance as it seeks to deter, prevent and detect fraud and
other significant malpractices. Before completing this form, you should:


Consider whether the Protected Disclosures Policy is the appropriate policy under which
to report your concern (matters of private interest may be reported under relevant
grievance procedures or the IPS Anti-Harassment, Sexual Harassment and Bullying Policy
through the Staff and Corporate Services Directorate)
Ensure that the report is being made in relation to a matter that you have reasonable
grounds to be concerned about.
Reports should be submitted to appropriate person (through line management) as outlined in the
Protected Disclosures Policy. Where it is intended to communicate the concern directly to the Head
Internal Audit then the report can be forwarded to: The Head of Internal Audit, 51 St Stephen’s Green,
Dublin 2, Phone: 01 6028499, Email: [email protected]
Name of Worker reporting the concern:
(Anonymous reports will be considered but are
not encouraged).
Phone number:
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Email Address
Details of Concern/Disclosure including
dates, if applicable:
(Care should be taken to only include the name(s) of
individual(s) directly relevant to the report).
Has the concern been reported
previously:
(If so, please specify when and to whom).
Appendix 2: Internal Reporting Workflow
The following diagram summarises the life cycle of disclosure form the time the report was made,
through the assessment phase and thereafter
Report Made
Assessment
Report Based on
Reasonable Belief
but Ungrounded
Report based on
Reasonable Belief
and Grounded
Concerns
Closed
addressed as
appropriate
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Deliberately False
Report
Addressed under
disciplinary code
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END OF DOCUMENT
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